Police brutality is the wanton use of excessive force, usually physical, but potentially in the form of verbal attacks and psychological intimidation, by a police officer. Widespread police brutality exists in many countries, even those that prosecute it. It is one of several forms of police misconduct, which include: false arrest, intimidation, racial profiling, political repression, surveillance abuse, sexual abuse and police corruption.

Constable Jason Katz has been charged for assault prior to Joshua Kukemueller's assault

By Keith Lacey

A Sudbury police constable will find out next Thursday if he will have to go on trial on one count of assaulting a drunk man with a flashlight 28 months ago.

Const. Dan Kingsley had one charge of assault causing bodily harm stayed against him last May.

A judge ruled his right to a fair trial would be seriously jeopardized after it was revealed a police videotape was inadvertently taped over by another officer.

The complainant in the case, who court heard admits he was severely intoxicated, was taken to police headquarters following his arrest.

A video tape recorded Kingsley interacting with him in the booking area.

That videotape was taped over by accident by another officer months after defence counsel asked for disclosure on all Crown evidence available, court heard.

Sudbury's Crown's office appealed the judge's ruling and Monday North Bay assistant Crown attorney Paul Larsh told Justice Patricia Hennessy of the Ontario Superior Court that Justice Bruce Payne made an error in law in staying the charges.

Defence counsel Harry Black said Payne did not make any errors in law, made the correct decision in granting the stay of charges and the appeal should be dismissed.

Kingsley, 32, was charged following a complaint by a Sudbury man who said Kingsley repeatedly hit him with his policeissue flashlight Oct. 16, 1999 outside a New Sudbury bar.

Larsh told the court staying the charges without hearing any evidence from any witness wasn't appropriate.

"Whatever happened in the parking lot," and the case should proceed to trial before any ruling on the importance of the videotape is made, said Larsh.

The missing videotape might be of assistance in determining the complainant's demeanour, state of intoxication, any physical injuries and interaction with Kingsley, but "it's pure speculation" on how important the videotape would be at trial, he said.

"At some point the judge should have listened to some of the witnesses at the scene," he said. "The learned judge was wrong in granting a stay."

The Ontario Court of Appeal clearly states staying of charges should only be imposed "in the rarest of cases" and this isn't one of those cases, said Larsh.

The key issue of whether there was an assault causing bodily harm and whether Kingsley used excessive force can't be answered by the tape, but only by witnesses at the scene, said Larsh.

Black said Payne didn't refuse to hear evidence, but rightly ruled on case law before him and the fact he considered the videotape to be crucial to any defence in this matter.

The videotape evidence was crucial to presenting a full defence, he said.

The Crown and police had several months to seize the videotape after he made an initial request for disclosure and failure to do so is tantamount to "unacceptable negligence" which is grounds for granting a stay of charges, said Black.

"The tape was clearly relevant and its loss was inexcusable," he said. "This is gross negligence."

If Hennessy rules in favour of the Crown, Kingsley will return to court to set a trial date. If the appeal is denied, the charge will likely be withdrawn by the Crown.

Kingsley still faces a Police Services Act tribunal in relation to an allegation he roughed up another man outside a Wahnapitae tavern two weeks after this initial allegation.

Kingsley was charged with assault with a weapon, while Const. Jason Katz facedone charge of common assault after a Thunder Bay man, Mike Cloutier, claimed both officers used excessive force during an arrest Oct. 30, 1999.

Following a lengthy investigation by the North Bay OPP, both Kingsley and Katz were charged. Kingsley has not returned to active duty since being charged, but has been getting full pay while working desk duties.

If a police officer is found guilty of misconduct during a police tribunal, punishment ranges from demotion or rank and pay, to a fine to dismissal.

If a tribunal finds an officer was not guilty of misconduct, they are free to return to active duty with their rank unaffected.

The bias that I experienced while on trial at the Peterborough court house was more than evident and I would like to mention one of a few incidents.

At my trial in Peterborough, I was accusing the Police of fabricating evidence against me and also fabricating events around my arrest and unlawful detention. My witnesses contradicted what the police were saying. These contradictions were serious and not vague. If one side was telling the truth, then the other was lying.

To believe my witnesses over the police would indicate that the police were lying in their notes and while testifying. My Judge, Robert Graydon of Cobourg, applied the principles of W.D.(a legal test for credibility) and found my witness to be credible and truthful and officer Kaury Jones of the Peterborough OPP to be CURIOUS (good word to use to avoid saying the cop was lying).

My ruling was that I was unlawfully arrested (assaulted) and the charges were dismissed and my section 7,8 and 9 Chartered Rights were violated. At the end of the reading of the reasons for the ruling, the Judge reprimanded me for my behavior on the day of my arrest and complimented the officer for his polite, well spoken, but curious testimony.

I have no issue with the Justice Robert Graydon reprimanding me, even if I was the victim, but to compliment officer Kaury Jones for his curious testimony on the stand, that turns my stomach.

This is the typical bias a person will experience when accusing cops of lying to a judge.

Last edited by Gkuke on Tue Jun 17, 2014 7:33 pm, edited 4 times in total.

Ontario’s Crown attorneys will soon be required to report cases where they believe police officers have lied under oath.

Gerretsen (The Attorney General) said he would consider such a mechanism or policy that takes the allegation of a lie and moves it to the appropriate authorities for investigation.

This is a joke. In other words, The Attorney General will now be made allert of incidents ahead of time so they can conduct damage control.

What is the Attorney General going to do, Investigate itself or PAY someone to investigate themselves

So what happened when I was accusing the police of fabricating evidence, nothing!!

At my trial when the police lied the Judge was alert to it as his decision indicated, yet he reprimanded me for my conduct (words spoken) during arrest and then complimented the cop for being well spoken and polite (while lying).

I was reprimanded, yet he ruled that I was unlawfully arrested (assaulted), unlawfully detained in a cell (unlawful confinement) and my rights to life and liberty were violated!!

WOW! I wonder what would happen if I was at trial for assault and unlawful confinement and then found guilty, If the accused said I was swearing at him then I guess it was justified.

This Justice system makes me, my family and everyone that was aware of what happened, SICK!!!

A superior court judge has quashed the stay of charges against a Sudbury police constable and he now faces a trial in relation to an alleged assault outside a bar in 1999.

Justice Patricia Hennessy granted North Bay assistant Crown attorney Paul Larsh's appeal of a ruling made by another judge last May in which a charge of assault causing bodily harm was stayed by Justice Bruce Payne because a police videotape which showed Kingsley and the complainant in a police booking area was inadvertently taped over.

Payne had ruled the missing videotape would seriously jeopardized Const. Dan Kingsley's chance to a fair trial and full answer in defence.

Kingsley was charged Feb. 1, 2000 following an incident outside the former Scooter's bar on Lasalle Boulevard which took place Oct. 16, 1999.

Kingsley arrested a drunk patron, who was later charged with assault, resisting arrest, obstructing justice and public intoxication. The man alleged Kingsley used excessive force during the arrest and hit him with a police flashlight. Kingsley was charged following an investigation by another police service.

Hennessy ruled "the trial judge erred in principle granting a stay. This is not one of the clearest cases in which a stay is necessary for the interests of justice. Both the community and the accused are entitled to a fair trial.

"Accordingly, the appeal is allowed, the order staying the proceedings is quashed and the matter is remitted for a new trial."

No new date has been set for Kingsley's trial.

The trial judge erred in finding prejudice to the right to make full answer in defence and the missing videotape should have been considered with all other evidence which would have been presented at trial, said Hennessy.

"Actual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult," she said.

Without proceeding to trial and hearing all the evidence, including evidence from eyewitnesses, the judge had no way of testing the assumptions of the defence that the videotape would have provided essential information about the complainant's demeanour or any physical discomfort, said Hennessy.

"In this case, I do not see how prejudice to the accused could be assessed without hearing all the evidence in the context of a trial," she said.

Kingsley was charged two weeks after this incident, on Oct. 30, 1999, with a separate count of assault causing bodily harm for an incident outside the Wahnapitae Tavern. That charge was withdrawn by the Crown in open court several months ago.

Sgt. Loretta Ronchin of the Greater Sudbury Police Service told Northern Life the police service won't make any decision on whether Kingsley will have to face a Police Services Act tribunal in relation to the Oct. 30 charges until hes finished completely with the criminal courts on the Oct. 16 charges.